The case for a Canada-U.S. land swap

Canada and America are about to resume negotiations over a cross-border customs agreement known as “land pre-clearance.” These negotiations failed in 2008 and, despite good intentions, may very well fail again. There is a better way—a land swap, formally exchanging territory on opposite sides of the border. It may take longer—but a long process that succeeds is far better than a shorter process that doesn’t.

Earlier this year, President Barack Obama and Prime Minister Stephen Harper announced a plan they called “Beyond the Border.” The main idea behind it was for Canada and the United States to co-operate on a secure perimeter for their common space—in effect, applying the NORAD model to the movement of people, goods and services into North America. This is fundamentally a good idea for both countries—like it or not, our security is inextricably linked. From a Canadian perspective, one of the major corollary benefits of a joint approach to the perimeter would be the “thinning” of the border between the two countries, facilitating travel and trade.

To that end, one part of the December plan to implement the agreement (released earlier this month) calls for Canada and the United States to negotiate a land pre-clearance agreement—that is, an agreement where American customs and immigration officials will physically be located on the Canadian side of the border to screen people, trucks, and cargo before they cross into the U.S.; Canadian border officials would, likewise, do their work at a facility on the American side.

This is not a new proposal. In fact, we are now approaching the 10th anniversary of the first time the two countries discussed this idea. As an official at the U.S. Department of Homeland Security, I participated in these negotiations from 2005 until late 2008, when they last broke down.

The reasons they broke down are by now quite familiar. Americans tend to favour stricter security measures than Canadians do, measures that many Canadians see as overly intrusive and violating civil liberties and privacy rights. Simply by way of example, one small but intractable problem proved to be whether or not the U.S. would be allowed to keep a record of people trying to enter from Canada but who refused to undergo screening and walked away from the entry point. To Americans, that was a possible surreptitious attempt to probe their border security; to Canadians it was the exercise of a fundamental right to privacy and choice.

At bottom, however, the question was not so much about policy—those differences can, in the end, be compromised and negotiated. Rather, the fundamental divergence was over sovereignty. Canadians, quite reasonably, wanted Canadian law to apply on Canadian soil. Americans, equally reasonably, wanted American law to apply to those trying to enter the United States. That circle of equally valid concerns could not be squared, try as we might.

And yet the new Border Action Plan says we will try again. Why? Well, everyone involved thinks that these types of negotiations are the “quick” and “easy” way to resolve the issue. Ten years after we began, it is time to re-examine that premise.

There is another way—one that is guaranteed to work. The two countries could agree to exchange land: Canada would own 500 hectares (say) on the American side of the border and put its customs site(s) there, while the U.S. would get 500 hectares of Canada for its site(s). Since the land would, officially and legally, belong to the country that operated the facility, there would be no problems of legal sovereignty. It is, in fact, an elegant and comprehensive solution.

So why haven’t we done it? When I asked that question in 2006, I was told that land swaps require a formal treaty. According to the “experts,” it would take too long (say 10-15 years) to negotiate the treaty and get it signed and, eventually, ratified by the U.S. Senate and Parliament. Nobody wanted to take that long.

That was five years ago. If we had started then, we might be halfway done by now. If we had started in 2002 when the issue was first broached, President Obama and Prime Minister Harper would be planning a ribbon-cutting ceremony.

So, instead of trying again to negotiate an agreement that may well founder on the same intractable issues that bedevilled prior efforts, how about something new? Let’s just trade the land.